JUDICIAL ACTIVISM

Judicial review has been a part of our democracy in this constitutional government for over 200 years. Under the Indian Constitutional state is under the prime responsibility to ensure justice, freedom, liberty and equality in the country. In order to prevent state from escaping its responsibilities the constitution has granted inherent powers to judiciary to keep a check on the state function. In this content, judiciary is considered as the guardian and protector of Indian Constitution and supervises the implementation of fundamental rights and duties in the country. Article 13 read with Articles 32 and 226 of the Indian Constitution gives the power of judicial review to the higher judiciary to declare any legislative, executive or administrative action as void, if it is in contravention with the constitution. In the case of L. Chandra Kumar V. Union of India it has been held that power of judicial review is a part of basic structure of the Indian Constitution.

The emergence of judicial review gave birth to a new movement which is called as Judicial Activism. Judicial Activism refers to a philosophy of judicial decision making whereby judges allows their personal views about public policy to guide their decisions. The constitution of India divides the powers of government into three branches i.e. legislature, executive and judiciary and has defined their roles clearly. Legislature and executive are responsible for making the law of the land and judiciary is responsible for interpreting these laws and also has a power to review the law i.e. whether it is made in consonance with the basic principles of constitution or not. So, it is when the judiciary steps into the shoes of the executive and legislature and embarks on the work of law making rather than interpreting laws, it is deemed to be judicial activism.

The concept of judicial activism is not new. It origin goes back to nineteenth century America evolved by Chief Justice Marshall in the case of Marbury V. Madison. Judicial activism involves going beyond the normal constraints applied to jurists and acting in consonance with the constitution. Judicial activism earned a human face in India by liberating access to justice and giving relief to disadvantaged groups and the have-nots under the leadership of Justices V.R. Krishna Iyer and P.N. Bhagwati by the very introduction of the concept of Public Interest litigation. The Supreme Court of India has recognized in many landmark judgments that access to justice is a fundamental right. In many cases, the supreme court exercised its epistolary jurisdiction and took  suo moto actions disclosing the human rights violation in the society by doing so the superior Courts how liberated  themselves from the shackles of the principle of locus standing and validated the public  interest litigation in the case of SP Gupta vs Union of India 1981.Judicial  activism  has risen  mainly  due to the failure  of the executive  and legislatures  to discharge  its responsibilities  according  to the  laws framed  the entire  system  has been plagued  by ineffectiveness and inactiveness which leads to the violation  of basic human rights. Judiciary also comes  into play in case  of hung parliament where the government  is very weak and unstable  thus it becomes  the duty of the judiciary to take cognizance of the executive and legislative lapses and issues appropriate direction. Article 142 of the constitution confers the power to supreme court to pass decrease or make such order  as is necessary  for doing complete  justice  in any cause  or matter pending before it.

During the past decade, many instances of judicial activism have gained prominence. In the case of Indian young lawyers Association V. The State of Kerala the judiciary played an active role and provided access to women of all age Entry into the Sabrimala temple in Kerala. In the famous case of Animal Welfare Board of India v. A.Nagaraja and Ors the Supreme Court recognized the fundamental rights of animals and banned the Jalikattu race which was a harsh game on animals played for human pleasure. There have been many more examples wherein judiciary has played an active and positive role.

This new jurisprudence in the form of judicial activism has no doubt contributed in a great measure to the well being of the society. It has provided a system of checks and balances to the government branches. It allows judges to use their personal wisdom and bring out an innovative solution to provide a balance at a faster pace where legislature gets stuck in the issues of majority. Judicial activism also provides insights into the issues. The reason why this is a good thing is that it shows the instilled trust placed in the justice system and its judgments. It basically acts to fill the vacuum of legislature and executive and functions for social benefits.

However the powers given to judiciary should be guarded. Repeated interference of courts can erode the faith of the people in the quality, integrity and efficiency of governmental institution. If the judiciary will assume all the functions in its own hands then it will disturb the balance created by the constitution under Doctrine of separation of powers.

Thus it is necessary that judiciary should keep in mind that judicial activism does not become judicial overreach. The court themselves must display prudence and moderation and be conscious of the need for comity of instrumentalities as basic to good governance. The great contribution of judicial activism in India has been to provide a safety value in a democracy and a hope that justice is not beyond reach judicial activism is a sine qua non of democracy because without an alert and enlightened judiciary, the democracy will be reduced to an empty shell but it should only step in where is an utter misuse of power by the government and public interest is at stake as it is rightly said ‘liberals attempt through judicial activism what they cannot even at the ballot box’.